Yesterday, we discussed the breadth of the U.S. Environmental Protection Agency’s and Army Corps of Engineers’ proposed rule defining what waters fall under federal jurisdiction.  Their  press release announcing the rule states that the proposed rule “does not protect any new types of waters that have not historically been covered under the Clean Water Act and is consistent with the Supreme Court’s more narrow reading of Clean Water Act jurisdiction.”  The real question is whether the rule survives Rapanos.

As alluded to in the press release, Rapanos v. U.S. is the Supreme Court decision most recently narrowing the scope of the Clean Water Act.  Rapanos was an enforcement action against a developer for filling wetlands.  The case centered around whether the wetlands at issue were jurisdictional.

The Court split 4-1-4.  Four justices upheld the U.S.’s interpretation of what wetlands should be considered jurisdictional and four others ruled that only “relatively permanent” waters are jurisdictional.  Justice Kennedy, in the middle, rejected both tests, stating that waters are jurisdictional if they have a “significant nexus” to navigable waters.  Rapanos is the most current view of the Supreme Court on what wetlands are jurisdictional under the Act, and it serves as the basis for the proposed rule.

In the proposed rule, EPA and the Corps explicitly rely on Justice Kennedy’s test in determining that all tributaries and their adjacent waterbodies are jurisdictional because of these waters’ “significant nexus” to navigable waters. (They have to rely on Justice Kennedy’s test, since the rule doesn’t comport with the “relatively permanent” test.)

On close inspection, the proposed rule looks a lot like what the government argued, and lost, in Rapanos.  In its Rapanos brief, the government argued that “[t]he connection between traditional navigable waters and their tributaries is significant in practical terms, because pollution of the tributary has the potential to degrade the quality of the traditional navigable waters downstream.”  The government rejected the notion “that some tributaries may have such an attenuated connection to traditional navigable waters that federal protection of those tributaries would be unwarranted.”

The Supreme Court, and Justice Kennedy in particular, ruled against the government, specifically rejecting many of the key assertions underpinning the proposed rule.  In particular, Justice Kennedy stated, with emphasis added for clarity, that

• [T]he Corps deems a water a tributary if it feeds into a traditional navigable water (or a tributary thereof) and possesses an ordinary high-water mark, defined as a ‘line on the shore established by the fluctuations of water and indicated by [certain] physical characteristics. .’”

• “. . . the breadth of this standard – which seems to leave wide room for regulation of drains, ditches, and streams remote from any navigable-in-fact water and carrying only minor water volumes toward it – precludes its adoption as the determinative measure of whether adjacent wetlands are likely to play an important role in the integrity of an aquatic system comprising navigable waters as traditionally understood. Indeed, in many cases wetlands adjacent to tributaries covered by this standard might appear little more related to navigable-in-fact waters than were the isolated ponds held to fall beyond the Act’s scope in SWANCC.”

In short, Justice Kennedy ruled that one cannot definitively state that a wetland has a significant nexus (and is therefore jurisdictional) solely because it is adjacent to an ordinary-high-water-mark tributary.  Yet, in its proposed rule, EPA has defined a tributary as “a water physically characterized by the presence of a bed and banks and ordinary high water mark” and concluded that all adjacent waters, including wetlands, are jurisdictional, because they have a significant nexus.

Given the similarity between the proposed rule and the arguments made by the government and rejected by the Supreme Court in Rapanos, we are left to wonder:  Are EPA and the Corps hoping to persuade the Supreme Court to reconsider its decision in Rapanos?

Next week, we’ll look at some of the impacts of the proposed rule and some of the policy issues in play.

This is the third in a series of posts regarding EPA’s proposed rule redefining “waters of the United States” under the Clean Water Act.

For part one, click here.

For part two, click here.

For part four, click here.

For part five, click here.

For part six, click here.